ALLSTATE INSURANCE COMPANY v. MILLER

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ALLSTATE INSURANCE
COMPANY v. MILLER

No. 196172

November 25, 1997

Oakland Circuit Court

LC No. 86-318350-NO

ALLSTATE INSURANCE COMPANY,

Plaintiff-Appellee/Cross Appellant,

v

JUDITH MILLER, Personal Representative of the Estate of JACK
BYLSKI, Deceased, and Personal Representative of the Estate of
MARY RITA BYLSKI, Deceased,

Defendant-Appellant/Cross Appellee. AFTER REMAND

Before: Corrigan, C.J., and Griffin and Hoekstra, JJ.

CORRIGAN, C.J.

This insurance coverage dispute returns to this Court for the
fourth time[1]
for consideration whether a question of fact exists regarding the
applicability of an intentional acts exclusion to Alvin Freeman’s
killing of Jack Bylski. Our Supreme Court previously remanded
this case to the trial court because it had prematurely granted
summary disposition. Allstate Ins Co v Miller, 448 Mich
909; 533 NW2d 581 (1995). On remand, the trial court granted
plaintiff’s motion for summary disposition under MCR 2.116(C)(10)
regarding its claim that its homeowner’s policy did not provide
coverage for its insured’s intentional act in shooting
defendant’s decedent. Defendant appeals by right the order
granting plaintiff’s motion. Plaintiff cross appeals. We affirm
the grant of summary disposition and dismiss the cross appeal as
moot.

I. Underlying Facts and Procedural History

In 1984, plaintiff’s insured, Alvin Freeman, shot and killed
Jack Bylski at the Rialto restaurant in Ferndale. Freeman entered
the restaurant, ordered a drink and a meal, and then went to the
men’s restroom. Freeman returned from the restroom armed with a
handgun and opened fire in the crowded restaurant. One of bullets
struck and killed Bylski. Three other bullets struck Dan Bolen,
who survived. Freeman took waitress Karen Taylor hostage and
ordered everyone else to leave the restaurant. Freeman completed
the first stage of this tragic incident in, at most, a few
minutes.

Police officers soon arrived and attempted to negotiate with
Freeman, who held them at bay by periodically firing shots out
the restaurant window. Despite police efforts, Freeman shot Karen
Taylor in the head for no apparent reason. Responding to the shot
and Taylor’s screams, the officers shot and killed Freeman during
their attempt to rescue Taylor. Taylor ultimately died from her
injuries a year later.

Bolen and the personal representatives of Bylski’s and
Taylor’s estates filed tort actions against Freeman’s estate.
Plaintiff insurer defended the action, and filed a declaratory
action in United States District Court for the Eastern District
of Michigan, seeking a determination regarding coverage. That
action resulted in a mistrial. Before the new trial, the district
court dismissed the action without prejudice because plaintiff
should have sought relief in state court. Plaintiff thereafter
commenced this action, seeking a declaratory ruling that its
policy did not cover Freeman’s intentional acts in shooting
Bylski, Taylor and Bolen. Plaintiff subsequently moved for
summary disposition under MCR 2.116(C)(10). The trial court
granted the motion because, it determined, the policy’s
intentional acts exclusion applied. This Court reversed, however,
on the grounds that a genuine issue of fact existed regarding
Freeman’s state of mind. This Court reasoned that if Freeman
could not form the intent to act because of insanity, he did not
act intentionally within the terms of the exclusion. Allstate
Ins Co v Miller (Miller I), 175 Mich App 515, 520, 522; 438
NW2d 638 (1989).

On second remand, this Court again affirmed its decision in Miller
I, reasoning that Churchman, Piccard and Czopek
did not affect this Court’s determination that a question of fact
existed whether Freeman was not aware of, or unable to control,
his actions. Allstate Ins Co v Miller (On Remand) (Miller III),
unpublished opinion per curiam of the Court of Appeals, issued
October 8, 1993 (Docket No. 161270). On plaintiff’s third
application for leave, our Supreme Court again vacated this
Court’s judgment, and remanded the case to the circuit court. The
Court held that Freeman’s actions in shooting Bolen and Taylor
were "intentional" within the policy exclusion
language. However, regarding Freeman’s actions in shooting
Bylski, the Court held that the trial court prematurely granted
summary disposition under MCR 2.116(C)(10) on the limited record
then before the Court. Allstate Ins Co v Miller, 448 Mich
909; 533 NW2d 581 (1995).

On remand, plaintiff again moved for summary disposition under
MCR 2.116(C)(10) on the grounds that Freeman’s actions fell
within the intentional acts exclusion. The trial court reasoned:

The Court would note that the Court has spent a lot of time on
this motion. I’ve reviewed again and again the Defendant’s
position and I believe them [sic] to be incorrect. The review of
the Bolen deposition, in the Court’s mind, is sufficient to show
that Alvin Freeman discharged a gun into an occupied restaurant
in an intentional manner and that the bodily injury of Bylski was
a natural and foreseeable consequence of the Freeman intentional
action; this went to the Freeman and Maloney cases.
Now, I’ve heard your examples. I’ve heard the pumpkin example.
But when I look at this case and I, again and again, go back to
the facts . . . a person goes in with a gun, two of the parties
are killed or injured. The Court believes that in fact the
exclusion to the policy-that this is a case in which the
exclusion of the policy should be applied with regard to Bylski
and I believe that summary disposition should be granted.

Now, let me say a few other things on this case, too. In this
case, where you have-there’s been a ten year hiatus and let’s say
Bolen’s is the only testimony. The Court thinks that that’s
sufficient. A lot of work has gone into this case, a lot of
tremendous advocacy. But I just do not believe that, pursuant to
the law in this state and what’s before me, that there would be
coverage and I’m going to grant the motion for summary
disposition.

We reject defendant’s primary argument that the trial court
should not have granted summary disposition because plaintiff did
not conduct further discovery on remand. When an appellate court
remands a matter to the trial court, the court may take any
action which is not inconsistent with the appellate court’s
opinion. VanderWall v Midkiff, 186 Mich App 191, 196; 463
NW2d 219 (1990). Here, our Supreme Court determined on the record
then before it that the trial court prematurely granted summary
disposition regarding whether Freeman’s actions toward Bylski
fell within the intentional acts exclusion. On remand, plaintiff
supplemented the record with Dan Bolen’s entire deposition
testimony and the affidavit of Vincent Mullen, who had been
present in the restaurant during the shooting. Also, defendant
submitted the affidavits of seven other witnesses to the
shooting. Under these circumstances, plaintiff did not have to
conduct further discovery before moving for summary disposition
because the parties supplied evidence that was not before our
Supreme Court when it ruled.

We concede that the additional evidence sheds little light on
the circumstances surrounding the shooting because no witness can
say precisely what Freeman did and which shot killed Bylski.
Given the nature of the events, this should come as no surprise.
The restaurant employees and patrons were undoubtedly more
concerned with their safety during the shooting than with closely
observing Freeman’s every act and mannerism. The litigants and
the courts have spent the past thirteen years dissecting the
factual scenario and debating the legal ramifications of a tragic
incident that took place in seconds, or at most, a few minutes.
This case is now certainly ripe for summary disposition. The
parties have developed the record to the fullest extent possible.

Plaintiff’s policy provides in pertinent part:

We do not cover any bodily injury or property damage which may
reasonably be expected to result from the intentional or criminal
acts of an insured person or which is in fact intended by an
insured person.

The language "reasonably be expected" is
unambiguous, and requires that the court apply an objective
standard of expectation. Freeman, supra at 686. By
contrast, the language "in fact intended by an insured
person" requires that the court apply a subjective standard
of expectation. See id. Thus, coverage is excluded under
the policy when (1) the insured acted either intentionally or
criminally, and (2) the insured either reasonably expected or
actually intended that the particular injury would result from
his intentional or criminal conduct. An injury is reasonably
expected where it is the natural, foreseeable, expected and
anticipated result of the intentional or criminal conduct. Id.
at 687-688.

After Churchman and the Supreme Court’s actions in Miller
I, II, and III, the law in Michigan is clear:
Evidence that an insured suffers from mental illness, standing
alone, does not create a genuine issue of material fact regarding
whether the insured intended his actions or the consequences of
his actions. [Miller v Farm Bureau Mutual Ins Co, 218 Mich
App 221, 231; 553 NW2d 371 (1996).]

The record clearly establishes that Freeman acted
intentionally. Freeman shot Bylski and Bolen within a matter of
seconds. The record contains no evidence that Freeman fired his
gun by accident. Rather, all the available evidence demonstrates
that Freeman intended to discharge his weapon. The trial court
correctly found no genuine issue of material fact whether
Freeman’s actions toward Bylski were intentional for purposes of
the intentional acts exclusion.

Regarding the second prong of the Freeman test, the
trial court correctly determined that Bylski’s injury was the
natural, foreseeable, expected and anticipated result of
Freeman’s conduct. Freeman repeatedly discharged his weapon in a
crowded restaurant. On the record before us, the court need not
submit this matter to a trier of fact to determine whether
Freeman pointed the weapon at Bylski before he fired, fired a
shot into the air and it ricocheted into Bylski, or fired
indiscriminately throughout the room. Under the circumstances of
this case, the natural, foreseeable and expected result of the
conduct is the same, no matter how Freeman fired his gun. Freeman
reasonably expected that his actions would result in someone
being shot when he repeatedly discharged a firearm in a crowded
room. Therefore, the trial court properly granted plaintiff’s
motion for summary disposition.

In light of our determination that the trial court properly
granted plaintiff’s motion for summary disposition, we dismiss
plaintiff’s cross appeal as moot.[2]

[2]Plaintiff argues in its cross
appeal that (1) its policy did not cover the injuries for which
defendant sought recovery, (2) defendant did not preserve her
argument regarding whether plaintiff’s insured acted
intentionally and reasonably expected that injury would result
from his actions because defendant did not raise those issues in
her previous appeal, and (3) the trial court erred when it
refused to consider certain witnesses’ signed, unsworn statements
that plaintiff filed in support of its motion.